Email a Link to This Case
http://laws.findlaw.com/us/000/96-318.html
---------------------------------------------------------------------------- NOTE: Where it is feasible, a
syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is
issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337 .
4.1
U.S. Supreme Court
Syllabus
RICHARDSON et al. v. McKNIGHT
certiorari to the united states court of appeals for the sixth circuit
No. 96-318.
Argued March 19, 1997
Decided June 23, 1997
Respondent McKnight, a prisoner at a Tennessee correctional center whose management had
been privatized, filed this constitutional tort action under 42 U.S.C. § 1983 for physical
injuries inflicted by petitioner prison guards. The District Court denied petitioners' motion to
dismiss, finding that, since they were employed by a private prison management firm, they
were not entitled to qualified immunity from §1983 lawsuits. The Court of Appeals affirmed.
Held: Prison guards employed by a private firm are not entitled to a qualified immunity from
suit by prisoners charging a §1983 violation. Pp. 2-14.
(a) Four aspects of Wyatt v. Cole, 504 U.S. 158 --in which this Court found no §1983
immunity for private defendants charged with invoking state replevin, garnishment, and
attachment statutes later declared unconstitutional--are instructive here. First, §1983--which
deters state actors from depriving individuals of their federally protected rights--can
sometimes impose liability upon private individuals. Second, a distinction exists between an
immunity from suit--which frees one from liability whether or not he acted wrongly--and
other legal defenses--which may well involve the essence of the wrong. Third, history and the
purposes underlying §1983 immunity determine whether private defendants enjoy protection
from suit. Fourth, the Wyatt holding was limited to the narrow question before the Court and
is not applicable to all private individuals. Pp. 2-4.
(b) History does not reveal a firmly rooted tradition of immunity applicable to privately
employed prison guards. While government employed prison guards may have enjoyed a kind
of immunity defense arising out of their status as public employees at common law, see
Procunier v. Navarette, 434 U.S. 555, 561 -562, correctional functionshave never been
exclusively public. In the 19th century both private entities and government itself carried on
prison management activities. There is no conclusive evidence of an historical tradition of
immunity for private parties carrying out these functions. Pp. 5-8.
(c) The immunity doctrine's purposes also do not warrant immunity for private prison guards.
Mere performance of a governmental function does not support immunity for a private
person, especially one who performs a job without government supervision or direction.
Petitioners' argument to the contrary overlooks certain important differences that are critical
from an immunity perspective. First, the most important special government immunity
producing concern--protecting the public from unwarranted timidity on the part of public
officials--is less likely present when a private company subject to competitive market
pressures operates a prison. A firm whose guards are too aggressive will face damages that
raise costs, thereby threatening its replacement by another contractor, but a firm whose guards
are too timid will face replacement by firms with safer and more effective job records. Such
marketplace pressures are present here, where the firm is systematically organized, performs
independently, is statutorily obligated to carry insurance, and must renew its first contract
after three years. And they provide the private firm with incentives to avoid overly timid job
performance. To this extent, the employees differ from government employees, who act
within a system that is responsible through elected officials to the voters and that is often
characterized by civil service rules providing employee security but limiting the government
departments' flexibility to reward or punish individual employees. Second, privatization helps
to meet the immunity related need to ensure that talented candidates are not deterred by the
threat of damages suits from entering public service. Comprehensive insurance coverage
increases the likelihood of employee indemnification and to that extent reduces the
employment discouraging fear of unwarranted liability. Since a private firm is also freed from
many civil service restraints, it, unlike a government department, may offset increased
employee liability risk with higher pay or extra benefits. Third, while lawsuits may distract
private employees from their duties, the risk of distraction alone cannot be sufficient grounds
for an immunity. Tennessee, which has decided not to extend sovereign immunity to private
prison operators, can, moreover, be understood to have anticipated a certain amount of
distraction. Pp. 8-12.
(d) The Court closes with three caveats. First, the focus has been on §1983 immunity, not
liability. Second, the immunity question has been answered narrowly, in the context in which
it arose, and, thus, does not involve a private individual briefly associated with a government
body, serving as an adjunct to government in an essential governmental activity, or acting
under close official supervision. Third, no opinion is expressed on the issue whether
petitioners might assert, not immunity, but a special good faith defense. Pp. 13-14.
88 F. 3d 417, affirmed.
Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and
Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and
Kennedy and Thomas, JJ., joined.
---------------------------------------------------------------------------NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United
States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States,
Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made
before the preliminary print goes to press.
4.2
U.S. Supreme Court
No. 96-318
DARYLL RICHARDSON and JOHN WALKER, PETITIONERS v. RONNIE LEE
McKNIGHT
on writ of certiorari to the united states court of appeals for the sixth circuit
[June 23, 1997]
Justice Breyer delivered the opinion of the Court.
The issue before us is whether prison guards who are employees of a private prison
management firm are entitled to a qualified immunity from suit by prisoners charging a
violation of 42 U.S.C. § 1983. We hold that they are not.
Ronnie Lee McKnight, a prisoner at Tennessee's South Central Correctional Center (SCCC),
brought this federal constitutional tort action against two prison guards, Darryl Richardson
and John Walker. He says the guards injured him by placing upon him extremely tight
physical restraints, thereby unlawfully "subject[ing]" him "to the deprivation of" a right
"secured by the Constitution" of the United States. Rev. Stat. §1979, 42 U.S.C. § 1983.
Richardson and Walker asserted a qualified immunity from §1983 lawsuits, see Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982), and moved to dismiss the action. The District Court
noted that Tennessee had "privatized" the management of a number of its correctional
facilities, and that consequently a private firm, not the state government, employed the guards.
See Tenn. Code Ann. §41-24-101 et seq. (1990 and Supp. 1996); see generally Cody &
Bennett, ThePrivatization of Correctional Institutions: The Tennessee Experience, 40 Vand.
L. Rev. 829 (1987) (outlining State's history with private correctional services). The court
held that, because they worked for a private company rather than the government, the law did
not grant the guards immunity from suit. It therefore denied the guards' motion to dismiss.
The guards appealed to the Sixth Circuit. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(permitting interlocutory appeals of qualified immunity determinations); see also Johnson v.
Jones, 515 U.S. 304 (1995); Behrens v. Pelletier, 516 U. S. ___ (1996). That court also ruled
against them. McKnight v. Rees, 88 F. 3d 417, 425 (CA6 1996). The Court of Appeals
conceded that other courts had reached varying conclusions about whether, or the extent to
which, private sector defendants are entitled to immunities of the sort the law provides
governmental defendants. See, e.g., Eagon v. Elk City, 72 F. 3d 1480, 1489-1490 (CA10
1996); Williams v. O'Leary, 55 F. 3d 320, 323-24 (CA7), cert. denied, 516 U. S. ___ (1995);
Frazier v. Bailey, 957 F. 2d 920, 928-929 (CA1 1992). But the court concluded, primarily for
reasons of "public policy," that the privately employed prison guards were not entitled to the
immunity provided their governmental counterparts. 88 F. 3d, at 425. We granted certiorari to
review this holding. We now affirm.
We take the Court's recent case, Wyatt v. Cole, 504 U.S. 158 (1992), as pertinent authority.
The Court there considered whether private defendants, charged with §1983 liability for
"invoking state replevin, garnishment, and attachment statutes" later declared unconstitutional
were "entitled to qualified immunity from suit." Id., at 159. It held that they were not. Id., at
169. We find four aspects of Wyatt relevant here.
First, as Wyatt noted, §1983 basically seeks "to deter state actors from using the badge of
their authority to deprive individuals of their federally guaranteed rights" and to provide
related relief. Id., at 161 (emphasis added) (citing Carey v. Piphus, 435 U.S. 247, 254 -257
(1978)); see also Owen v. Independence, 445 U.S. 622, 654 (1980). It imposes liability only
where a person acts "under color" of a state "statute, ordinance, regulation, custom, or usage."
42 U.S.C. § 1983. Nonetheless, Wyatt reaffirmed that §1983 can sometimes impose liability
upon a private individual. 504 U.S., at 162 ; see also Lugar v. Edmondson Oil Co., 457 U.S.
922, 924 (1982).
Second, Wyatt reiterated that after Harlow, supra, and this Court's reformulation of the
qualified immunity doctrine, see Anderson v. Creighton, 483 U.S. 635, 645 (1987), a
distinction exists between an "immunity from suit" and other kinds of legal defenses. 504
U.S., at 166 -167; see also Mitchell, supra, at 526. As the Wyatt concurrence pointed out, a
legal defense may well involve "the essence of the wrong," while an immunity frees one who
enjoys it from a lawsuit whether or not he acted wrongly. 504 U.S., at 171 -172 (Kennedy, J.,
concurring).
Third, Wyatt specified the legal source of §1983 immunities. It pointed out that although
§1983 " `creates a species of tort liability that on its face admits of no immunities,' " id., at
163 (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)), this Court has nonetheless
accorded immunity where a
" `tradition of immunity was so firmly rooted in the common law and was supported
by such strong policy reasons that `Congress would have specifically so provided had
it wished to abolish the doctrine. ' " 504 U.S., at 164 (quoting Owen v. Independence,
445 U.S. 622, 637 (1980)).
The Wyatt majority, in deciding whether or not the private defendants enjoyed immunity
looked both to history and to "the special policy concerns involved in suing government
officials." Id., at 167; see also Mitchell, supra, at 526; Harlow, 457 U.S., at 807 ; Imbler v.
Pachtman, supra, at 424. And in this respect--the relevant sources of the law--both the Wyatt
concurrence and the dissent seemed to agree. Compare 504 U.S., at 169 -171 (Kennedy, J.,
concurring) (existence of immunity depends upon "historical origins" and "public policy")
and id., at 175-176 (Rehnquist, C. J., dissenting) ("immunity" recognized where "similarly
situated defendant would have enjoyed an immunity at common law" or "when important
public policy concerns suggest the need for an immunity").
Fourth, Wyatt did not consider its answer to the question before it as one applicable to all
private individuals--irrespective of the nature of their relation to the government, position, or
the kind of liability at issue. Rather, Wyatt explicitly limited its holding to what it called a
"narrow" question about "private persons . . . who conspire with state officials," id., at 168,
and it answered that question by stating that private defendants "faced with §1983 liability for
invoking a state replevin, garnishment, or attachment statute" are not entitled to immunity. Id.,
at 168-169.
Wyatt, then, did not answer the legal question before us, whether respondents--two employees
of a private prison management firm--enjoy a qualified immunity from suit under §1983. It
does tell us, however, to look both to history and to the purposes that underlie government
employee immunity in order to find the answer. Id., at 164; see also Newport v. Fact
Concerts, Inc., 453 U.S. 247, 259 (1981); Owen, supra, at 638; Imbler, supra, at 424.
History does not reveal a "firmly rooted" tradition of immunity applicable to privately
employed prison guards. Correctional services in the United States have undergone various
transformations. See D. Shichor, Punishment for Profit 33, 36 (1995) (Shichor). Government
employed prison guards may have enjoyed a kind of immunity defense arising out of their
status as public employees at common law. See Procunier v. Navarette, 434 U.S. 555, 561 562 (1978) (extending qualified immunity to state prison guards). But correctional functions
have never been exclusively public. Shichor 33, 36. Private individuals operated local jails in
the 18th century, G. Bowman, S. Hakim, & P. Seidenstat, Privatizing the United States Justice
System 271, n. 1 (1992), and private contractors were heavily involved in prison management
during the 19th century. Shichor 33, 36.
During that time, some states, including southern states like Tennessee, leased their entire
prison systems to private individuals or companies which frequently took complete control
over prison management, including inmate labor and discipline. G. Bowman, S. Hakim, & P.
Seidenstat, Privatizing Correctional Institutions 42 (1993); see generally B. McKelvey,
American Prisons: A Study in American Social History Prior to 1915, pp. 172-180 (1968)
(describing 19th century American prison system); see also Shichor 34; G. de Beaumont and
A. de Tocqueville, On the Penitentiary System in the United States and Its Application in
France 35 (1833) (describing more limited prison contracting system in Massachusetts and
Pennsylvania). Private prison lease agreements (like inmate suits) seem to have been more
prevalent after §1983's enactment, see generally M. Mancini, One Dies, Get Another (1996),
but we have found evidence that t
he common law provided mistreated prisoners in prison leasing States with remedies
againstmistreatment by those private lessors. See, e.g., Dade Coal Co. v. Haslett, 83 Ga. 549,
550-551, 10 S. E. 435, 435-436 (1889) (convict can recover from contractor for injuries
sustained while on lease to private company); Boswell v. Barnhart, 96 Ga. 521, 522-523, 23
S. E. 414, 415 (1895) (wife can recover from contractor for chain gang related death of
husband); Dahlheim v. Lemon, 45 F. 225, 228-230 (1891) (contractor liable for convict
injuries); Tillar v. Reynolds, 96 Ark. 358, 360-361, 365-366, 131 S. W. 969, 970, 971-972
(1910) (work farm owner liable for inmate beating death); Weigel v. Brown, 194 F. 652 (CA8
1912) (prison contractor liable for unlawful whipping); see also Edwards v. Pocahontas, 47 F.
268 (CC Va. 1891) (inmate can recover from municipal corporation for injuries caused by
poor jail conditions); Hall v. O'Neil Turpentine Co., 56 Fla. 324, 47 So. 609 (1908) (private
prison contractor and subcontractor liable to municipality for escaped prisoner under lease
agreement); see generally Mancini, supra (discussing abuses of 19th century private lease
system). Yet, we have found no evidence that the law gave purely private companies or their
employees any special immunity from such suits. Compare Almango v. Board of Supervisors
of Albany County, 32 N. Y. 551 (1881) (no cause of action against private contractor where
contractor designated state instrumentality by statute). The case on which the dissent rests its
argument, Williams v. Adams, 85 Mass. 171 (1861) (which could not--without more--prove
the existence of such a tradition and does not, moreover, clearly involve a private prison
operator) actually supports our point. It suggests that no immunity from suit would exist for
the type of intentional conduct at issue in this case. See Williams, supra, at 171 (were
"battery" at issue, the case would be of a different "character" and "the defendant might be
responsible"); see id., at 176 (making clear that case only involves claim of ordinary
negligence for lack ofheat and other items, not "gross negligence," "implied malice," or
"intention to do the prisoner any bodily injury"); compare Tower v. Glover, 467 U.S. 914, 921
(1984)(concluding that state public defenders do not enjoy immunity from suit where conduct
intentional and no history of immunity for intentional conduct was established).
Correctional functions in England have been more consistently public, see generally 22
Encyclopedia Brittanica, "Prison" 361-368 (11th ed. 1911); S. Webb & B. Webb, English
Prisons Under Local Government (1922) (Webb), but historical sources indicate that England
relied upon private jailers to manage the detention of prisoners from the Middle Ages until
well into the 18th century. Shichor 21; see also Webb 4-5; 1 E. Coke, Institutes 43 (1797).
The common law forbade those jailers to subject " `their prisoners to any pain or torment,' "
whether through harsh confinement in leg irons, or otherwise. See In re Birdsong, 39 F. 599,
601 (SD Ga. 1889); 1 Coke, supra, at 315, 316, 381; 2 C. Addison, A Treatise on the Law of
Torts §1016, pp. 224-225 (1876); see also 4 Geo. IV., ch. 64, §X Twelfth. And it apparently
authorized prisoner lawsuits to recover damages. 2 Addison, supra, §1016. Apparently the law
did provide a kind of immunity for certain private defendants, such as doctors or lawyers who
performed services at the behest of the sovereign. See Tower, supra, at 921; J. Bishop,
Commentaries on Non Contract Law §§704, 710 (1889). But we have found no indication of
any more general immunity that might have applied to private individuals working for profit.
Our research, including the sources that the parties have cited, reveals that in the 19th century
(and earlier) sometimes private contractors and sometimes government itself carried on prison
management activities. And we have no found no conclusive evidence of an historical
tradition of immunity for private partiescarrying out these functions. History therefore does
not provide significant support for the immunity claim. Compare Briscoe v. LaHue, 460 U.S.
325, 330 -334 (1983) (immunity for witnesses); Pierson v. Ray, 386 U.S. 547, 554 -555
(1967) (immunity for judges and police officers); Tenney v. Brandhove, 341 U.S. 367, 372 376 (1951) (immunity for legislators).
Whether the immunity doctrine's purposes warrant immunity for private prison guards
presents a closer question. Wyatt, consistent with earlier precedent, described the doctrine's
purposes as protecting "government's ability to perform its traditional functions" by providing
immunity where "necessary to preserve" the ability of government officials "to serve the
public good or to ensure that talented candidates were not deterred by the threat of damages
suits from entering public service." 504 U.S., at 167 . Earlier precedent described immunity as
protecting the public from unwarranted timidity on the part of public officials by, for
example, "encouraging the vigorous exercise of official authority," Butz v. Economou, 438
U.S. 478, 506 (1978), by contributing to " `principled and fearless decision making,' " Wood
v. Strickland, 420 U.S. 308, 319 (1975)(quoting Pierson, supra, at 554), and by responding to
the concern that threatened liability would, in Judge Hand's words, " `dampen the ardour of all
but the most resolute, or the most irresponsible' " public officials. Harlow, 457 U.S., at 814
(quoting Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949) (L. Hand, J.), cert. denied, 339
U.S. 949 (1950); see also Mitchell, 472 U.S., at 526 (lawsuits may "distrac[t] officials from
their governmental duties").
The guards argue that those purposes support immunity whether their employer is private or
public. Brief for Petitioners 35-36. Since private prison guards perform the same work as state
prison guards, they say, theymust require immunity to a similar degree. To say this, however,
is to misread this Court's precedents. The Court has sometimes applied a functional approach
in immunity cases, but only to decide which type of immunity--absolute or qualified--a public
officer should receive. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Burns v.
Reed, 500 U.S. 478 (1991); Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner,
474 U.S. 193 (1985); Harlow, 457 U. S. at 800. And it never has held that the mere
performance of a governmental function could make the difference between unlimited §1983
liability and qualified immunity, see, e.g., Tower, 467 U.S., at 922 -923, especially for a
private person who performs a job without government supervision or direction. Indeed a
purely functional approach bristles with difficulty, particularly since, in many areas,
government and private industry may engage in fundamentally similar activities, ranging from
electricity production, to waste disposal, to even mail delivery.
Petitioners' argument also overlook certain important differences that, from an immunity
perspective, are critical. First, the most important special government immunity producing
concern--unwarranted timidity--is less likely present, or at least is not special, when a private
company subject to competitive market pressures operates a prison. Competitive pressures
mean not only that a firm whose guards are too aggressive will face damages that raise costs,
thereby threatening its replacement, but also that a firm whose guards are too timid will face
threats of replacement by other firms with records that demonstrate their ability to do both a
safer and a more effective job.
These ordinary marketplace pressures are present here. The private prison guards before us
work for a large, multistate private prison management firm. C. Thomas, D. Bolinger, & J.
Badalamenti, Private AdultCorrectional Facility Census 1 (10th ed. 1997) (listing the
Corrections Corporation of America as the largest prison management concern in the United
States). The firm is systematically organized to perform a major administrative task for profit.
Cf. Tenn. Code. Ann. §41-24-104 (Supp. 1996) (requiring that firms contracting with the state
demonstrate a history of successful operation of correctional facilities). It performs that task
independently, with relatively less ongoing direct state supervision. Compare §41-4-140(c)(5)
(exempting private jails from certain monitoring) with §41-4-116 (requiring inspectors to
examine publicly operated county jails once a month or more) and §41-4-140(a) (requiring
Tennessee Correctional Institute to inspect public correctional facilities on an annual basis
and to report findings of such inspections). It must buy insurance sufficient to compensate
victims of civil rights torts. §41-24-107. And, since the firm's first contract expires after three
years, §41-24-105(a), its performance is disciplined, not only by state review, see §§41-24105(c)%(f), 41-24-109, but also by pressure from potentially competing firms who can try to
take its place. Cf. §41-24-104(a)(4) (permitting State, upon notice, to cancel contract at any
time after first year of operation); see also §§41-24-105(c) and (d) (describing standards for
renewal of contract).
In other words, marketplace pressures provide the private firm with strong incentives to avoid
overly timid, insufficiently vigorous, unduly fearful, or "non arduous" employee job
performance. And the contract's provisions --including those that might permit employee
indemnification and avoid many civil service restrictions--grant this private firm freedom to
respond to those market pressures through rewards and penalties that operate directly upon its
employees. See §41-24-111. To this extent, the employees before us resemble those of other
private firms and differ from government employees.
This is not to say that government employees, in their efforts to act within constitutional
limits, will always, or often, sacrifice the otherwise effective performance of their duties.
Rather, it is to say that government employees typically act within a different system. They
work within a system that is responsible through elected officials to voters who, when they
vote, rarely consider the performance of individual subdepartments or civil servants
specifically and in detail. And that system is often characterized by multidepartment civil
service rules that, while providing employee security, may limit the incentives or the ability of
individual departments or supervisors flexibly to reward, or to punish, individual employees.
Hence a judicial determination that "effectiveness" concerns warrant special immunity type
protection in respect to this latter (governmental) system does not prove its need in respect to
the former. Consequently, we can find no special immunity related need to encourage
vigorous performance.
Second, "privatization" helps to meet the immunity related need "to ensure that talented
candidates" are "not deterred by the threat of damages suits from entering public service."
Wyatt, 504 U.S., at 167 ; see also Mitchell, supra, at 526 (citing Harlow, supra, at 816). It
does so in part because of the comprehensive insurance coverage requirements just
mentioned. The insurance increases the likelihood of employee indemnification and to that
extent reduces the employment discouraging fear of unwarranted liability potential applicants
face. Because privatization law also frees the private prison management firm from many
civil service law restraints, Tenn. Code Ann. §41-24-111 (1990), it permits the private firm,
unlike a government department, to offset any increased employee liability risk with higher
pay or extra benefits. In respect to this second government immunity related purpose then, it
is difficult to find a special need for immunity, for the guards'employer can operate like other
private firms; it need not operate like a typical government department.
Third, lawsuits may well " `distrac[t]' " these employees " `from their . . . duties' " Mitchell,
472 U.S., at 526 (quoting Harlow, 457 U.S., at 816 ), but the risk of "distraction" alone cannot
be sufficient grounds for an immunity. Our qualified immunity cases do not contemplate the
complete elimination of lawsuit based distractions. Cf. Harlow, supra, at 818-819 (officials
subject to suit for violations of clearly established rights). And it is significant that, here,
Tennessee law reserves certain important discretionary tasks--those related to prison
discipline, to parole, and to good time--for state officials. Tenn. Code. Ann. §41-24-110
(1990). Given a continual and conceded need for deterring constitutional violations and our
sense that the firm's tasks are not enormously different in respect to their importance from
various other publicly important tasks carried out by private firms, we are not persuaded that
the threat of distracting workers from their duties is enough virtually by itself to justify
providing an immunity. Moreover, Tennessee, which has itself decided not to extend sov
ereign immunity to private prison operators (and arguably appreciated that this decision
would increase contract prices to some degree), Tenn. Code Ann. §41-24-107, can be
understood to have anticipated a certain amount of distraction.
4.2.1 D.
Our examination of history and purpose thus reveals nothing special enough about the job or
about its organizational structure that would warrant providing these private prison guards
with a governmental immunity. The job is one that private industry might, or might not,
perform; and which history shows private firms did sometimes perform without relevant
immunities. The organizational structure is one subject to theordinary competitive pressures
that normally help private firms adjust their behavior in response to the incentives that tort
suits provide--pressures not necessarily present in government departments. Since there are no
special reasons significantly favoring an extension of governmental immunity, and since
Wyatt makes clear that private actors are not automatically immune (i. e., §1983 immunity
does not automatically follow §1983 liability), we must conclude that private prison guards,
unlike those who work directly for the government, do not enjoy immunity from suit in a
§1983 case. Cf. Forrester v. White, 484 U.S. 219, 224 (1988) (Officers "who seek exemption
from personal liability have the burden of showing that such an exemption is justified . . .");
see also Butz, 438 U.S., at 506 .
We close with three caveats. First, we have focused only on questions of §1983 immunity and
have not addressed whether the defendants are liable under §1983 even though they are
employed by a private firm. Because the Court of Appeals assumed, but did not decide, §1983
liability, it is for the District Court to determine whether, under this Court's decision in Lugar
v. Edmondson Oil Co., 457 U.S. 922 (1982), defendants actually acted "under color of state
law."
Second, we have answered the immunity question narrowly, in the context in which it arose.
That context is one in which a private firm, systematically organized to assume a major
lengthy administrative task (managing an institution) with limited direct supervision by the
government, undertakes that task for profit and potentially in competition with other firms.
The case does not involve a private individual briefly associated with a government body,
serving as an adjunct to government in an essential governmental activity, or acting under
close official supervision.
Third, Wyatt explicitly stated that it did not decide whether or not the private defendants
before it might assert, not immunity, but a special "good faith" defense. The Court said that it
"d[id] not foreclose the possibility that private defendants faced with §1983 liability
under Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), could be entitled to an
affirmative defense based on good faith and/or probable cause or that §1983 suits
against private, rather than governmental, parties could require plaintiffs to carry
additional burdens." Wyatt, 504 U.S., at 169 .
But because those issues were not fairly before the Court, it left "them for another day." Ibid.
Similarly, the Court of Appeals in this case limited its holding to the question of immunity. It
said specifically that it
"may be that the appropriate balance to be struck here is to permit the correctional
officers to assert a good faith defense, rather than qualified immunity. . . . However,
that issue is not before this Court in this interlocutory appeal." 88 F. 3d, at 425.
Like the Court in Wyatt, and the Court of Appeals in this case, we do not express a view on
this last mentioned question.
For these reasons the judgment of the Court of Appeals is
Affirmed.
---------------------------------------------------------------------------4.3
U.S. Supreme Court
No. 96-318
DARYLL RICHARDSON and JOHN WALKER, PETITIONERS v. RONNIE LEE
McKNIGHT
on writ of certiorari to the united states court of appeals for the sixth circuit
[June 23, 1997]
Justice Scalia, with whom The Chief Justice, Justice Kennedy and Justice Thomas join,
dissenting.
In Procunier v. Navarette, 434 U.S. 555 (1978), we held that state prison officials, including
both supervisory and subordinate officers, are entitled to qualified immunity in a suit brought
under 42 U.S.C. § 1983. Today the Court declares that this immunity is unavailable to
employees of private prison management firms, who perform the same duties as state
employed correctional officials, who exercise the most palpable form of state police power,
and who may be sued for acting "under color of state law." This holding is supported neither
by common law tradition nor public policy, and contradicts our settled practice of determining
§1983 immunity on the basis of the public function being performed.
The doctrine of official immunity against damages actions under §1983 is rooted in the
assumption that that statute did not abolish those immunities traditionally available at
common law. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). I agree with the Court,
therefore, that we must look to history to resolve this case. I do not agree with the
Court,however, that the petitioners' claim to immunity is defeated if they cannot provide an
actual case, antedating or contemporaneous with the enactment of §1983, in which immunity
was successfully asserted by a private prison guard. It is only the absence of such a case, and
not any explicit rejection of immunity by any common law court, that the Court relies upon.
The opinion observes that private jailers existed in the 19th century, and that they were
successfully sued by prisoners. But one could just as easily show that government employed
jailers were successfully sued at common law, often with no mention of possible immunity,
see Schellenger, Civil liability of sheriff or other officer charged with keeping jail or prison
for death or injury of prisoner, 14 A. L. R. 2d 353 (1950) (annotating numerous cases where
sheriffs were held liable). Indeed, as far as my research has disclosed, there may be more case
law support for immunity in the private jailer context than in the government jailer context.
The only pre-§1983 jailer immunity case of any sort that I am aware of is Williams v. Adams,
85 Mass. 171 (1861), decided only 10 years before §1983 became law. And that case, which
explicitly acknowledged that the issue of jailer immunity was "novel," ibid, appears to have
conferred immunity upon an independent contractor. 1
The truth to tell, Procunier v. Navarette, supra, which established §1983 immunity for state
prison guards, did not trouble itself with history, as our later §1983 immunity opinions have
done, see, e.g., Burns v. Reed, 500 U.S. 478, 489 -490 (1991); Tower v. Glover, 467 U.S.
914, 920 (1984), but simply set forth a policy prescription. At this stage in our jurisprudence it
is irrational, and productive of harmful policy consequences, to rely upon lack of case support
to create an artificial limitation upon the scope of a doctrine (prison guard immunity) that was
itself not based on case support. I say an artificial limitation, because the historical principles
on which common law immunity was based, and which are reflected in our jurisprudence,
plainly cover the private prison guard if they cover the nonprivate. Those principles are two:
(1) immunity is determined by function, not status, and (2) even more specifically, private
status is not disqualifying.
"[O]ur cases clearly indicate that immunity analysis rests on functional categories, not
on the status of the defendant." Briscoe v. LaHue, 460 U.S. 325, 342 (1983).
Immunity "flows not from rank or title or `location within the Government,' but from
the nature of the responsibilities of the individual official." Cleavinger v. Saxner, 474
U.S. 193, 201 (1985), quoting Butz v. Economou, 438 U.S. 478 (1978). "Running
through our cases, with fair consistency, is a `functional' approach to immunity
questions . . . . Under that approach, we examine the nature of the functions with
which a particular official or class of officials has been lawfully entrusted, and we
seek to evaluate the effect that exposure to particular forms of liability would
likelyhave on the appropriate exercise of those functions." Forrester v. White, 484
U.S. 219, 224 (1988). See also, Buckley, 509 U.S., at 269 ; Burns, 500 U.S., at 484 486; Malley v. Briggs, 475 U.S. 335, 342 -343 (1986); Harlow v. Fitzgerald, 457 U.S.
800, 810 -811 (1982); Imbler v. Pachtman, 424 U.S. 409, 420 -429 (1976). The parties
concede that petitioners perform a prototypically governmental function (enforcement
of state imposed deprivation of liberty), and one that gives rise to qualified immunity.
The point that function rather than status governs the immunity determination is demonstrated
in a prison guard case virtually contemporaneous with the enactment of §1983. Alamango v.
Board of Supervisors of Albany Cty., 32 N. Y. Sup. Ct. 551 (1881), held that supervisors
charged under state law with maintaining a penitentiary were immune from prisoner lawsuits.
Although they were not formally state officers, the court emphasized the irrelevance of this
fact:
"The duty of punishing criminals is inherent in the Sovereign power. It may be
committed to agencies selected for that purpose, but such agencies, while engaged in
that duty, stand so far in the place of the State and exercise its political authority, and
do not act in any private capacity." Id., at 552. 2
Private individuals have regularly been accorded immunity when they perform a
governmental function that qualifies. We have long recognized the absolute immunity of
grand jurors, noting that like prosecutors and judges they must "exercise a discretionary
judgment on the basis of evidence presented to them." Imbler, 424 U.S., at 423 , n. 20. "It is
the functional comparability of [grand jurors'] judgments to those of the judge that has
resulted in [their] being termed `quasi judicial' officers, and their immunities being termed
`quasi judicial' as well." Ibid. Likewise, witnesses who testify in court proceedings have
enjoyed immunity, regardless of whether they were government employees. "[T]he common
law," we have observed, "provided absolute immunity from subsequent damages liability for
all persons--governmental or otherwise--who were integral parts of the judicial process."
Briscoe, supra, at 335 (emphasis added). I think it highly unlikely that we would deny
prosecutorial immunity to those private attorneys increasingly employed by various
jurisdictions in this country to conduct high visibility criminal prosecutions. See, e.g., Kaplan,
State Hires Private Lawyer for Bryant Family Trial, Los Angeles Times, Apr. 28, 1993, p. B4,
col. 2; Estrich, On Building the Strongest Possible Prosecution Team, Los Angeles Times,
July 10, 1994, p. M1, col. 1. There is no more reason for treating private prison guards
differently.
Later in its opinion, the Court seeks to establish that there are policy reasons for denying to
private prison guards the immunity accorded to public ones. As I haveindicated above, I
believe that history and not judicially analyzed policy governs this matter--but even on its
own terms the Court's attempted policy distinction is unconvincing. The Court suggests two
differences between civil service prison guards and those employed by private prison firms
which preclude any "special" need to give the latter immunity. First, the Court says that
"unwarranted timidity" on the part of private guards is less likely to be a concern, since their
companies are subject to market pressures that encourage them to be effective in the
performance of their duties. If a private firm does not maintain a proper level of order, the
Court reasons, it will be replaced by another one--so there is no need for qualified immunity
to facilitate the maintenance of order.
This is wrong for several reasons. First of all, it is fanciful to speak of the consequences of
"market" pressures in a regime where public officials are the only purchaser, and other
people's money the medium of payment. Ultimately, one prison management firm will be
selected to replace another prison management firm only if a decision is made by some
political official not to renew the contract. See Tenn. Code Ann. §§41-24-103 to 105 (Supp.
1996). This is a government decision, not a market choice. If state officers turn out to be more
strict in reviewing the cost and performance of privately managed prisons than of publically
managed ones, it will only be because they have chosen to be so. The process can come to
resemble a market choice only to the extent that political actors will such resemblance--that is,
to the extent that political actors (1) are willing to pay attention to the issue of prison services,
among the many issues vying for their attention, and (2) are willing to place considerations of
cost and quality of service ahead of such political considerations as personal friendship,
political alliances, in state ownership of the contractor, etc. Secondly and more importantly,
however, if one assumes a political regime that is bent on emulating the market in its purchase
of prison services, it is almost certainly the case that, short of mismanagement so severe as to
provoke a prison riot, price (not discipline) will be the predominating factor in such a regime's
selection of a contractor. A contractor's price must depend upon its costs; lawsuits increase
costs 3 ; and "fearless" maintenance of discipline increases lawsuits. The incentive to down
play discipline will exist, moreover, even in those states where the politicians' zeal for market
emulation and budget cutting has waned, and where prison management contract renewal is
virtually automatic: the more cautious the prison guards, the fewer the lawsuits, the higher the
profits. In sum, it seems that "market competitive" private prison managers have even greater
need than civil service prison managers for immunity as an incentive to discipline.
The Court's second distinction between state and private prisons is that privatization "helps to
meet the immunity related need to ensure that talented candidates are not deterred by the
threat of damages suits from entering public service" as prison guards. Ante, at 11 (internal
quotation marks omitted). This is so because privatization brings with it (or at least has
brought with it in the case before us) (1) a statutory requirement for insurance coverage
against civil rights claims, which assertedly "increases the likelihood ofemployee
indemnification," and (2) a liberation "from many civil service law restraints" which prevent
increased employee risk from being "offset . . . with higher pay or extra benefits," ibid. As for
the former (civil rights liability insurance): surely it is the availability of that protection, rather
than its actual presence in the case at hand, which decreases (if it does decrease, which I
doubt) the need for immunity protection. (Otherwise, the Court would have to say that a
private prison management firm that is not required to purchase insurance, and does not do so,
is more entitled to immunity; and that a government run prison system that does purchase
insurance is less entitled to immunity.) And of course civil rights liability insurance is no less
available to public entities than to private employers. But the second factor--liberation from
civil service limitations--is the more interesting one. First of all, simply as a philosophical
matter it is fascinating to learn that one of the prime justifications for §1983 immunity should
be a phenomenon (civil service laws) that did not even exist when §1983 was enacted and the
immunity created. Also as a philosophical matter, it is poetic justice (or poetic revenge) that
the Court should use one of the principal economic benefits of "prison out sourcing"--namely,
the avoidance of civil service salary and tenure encrustations--as the justification for a legal
rule rendering out sourcing more expensive. Of course the savings attributable to out sourcing
will not be wholly lost as a result of today's holding; they will be transferred in part from the
public to prisoner plaintiffs and to lawyers. It is a result that only the American Bar
Association and the American Federation of Government Employees could love. But apart
from philosophical fascination, this second factor is subject to the same objection as the first:
governments need not have civil service salary encrustations (or can exempt prisons from
them); and hence governments, no more than privateprison employers, have any need for
§1983 immunity.
There is one more possible rationale for denying immunity to private prison guards worth
discussing, albeit briefly. It is a theory so implausible that the Court avoids mentioning it,
even though it was the primary reason given in the Court of Appeals decision that the Court
affirms. McKnight v. Rees, 88 F. 3d 417, 424-425 (CA6 1996). It is that officers of private
prisons are more likely than officers of state prisons to violate prisoners' constitutional rights
because they work for a profit motive, and hence an added degree of deterrence is needed to
keep these officers in line. The Court of Appeals offered no evidence to support its bald
assertion that private prison guards operate with different incentives than state prison guards,
and gave no hint as to how prison guards might possibly increase their employers' profits by
violating constitutional rights. One would think that private prison managers, whose §1983
damages come out of their own pockets, as compared with public prison managers, whose
§1983 damages come out of the public purse, would, if anything, be more careful in training
their employees to avoid constitutional infractions. And in fact, States having experimented
with prison privatization commonly report that the overall caliber of the services provided to
prisoners has actually improved in scope and quality. Matters Relating To The Federal Bureau
Of Prisons: Hearing before the Subcommittee on Crime of the House Committee on the
Judiciary, 104th Cong., 1st Sess., 110 (1995).
***
In concluding, I must observe that since there is no apparent reason, neither in history nor in
policy, for making immunity hinge upon the Court's distinction between public and private
guards, the precise nature of that distinction must also remain obscure. Is it privityof contract
that separates the two categories--so that guards paid directly by the State are "public" prison
guards and immune, but those paid by a prison management company "private" prison guards
and not immune? Or is it rather "employee" versus "independent contractor" status--so that
even guards whose compensation is paid directly by the State are not immune if they are not
also supervised by a state official? Or is perhaps state supervision alone (without direct
payment) enough to confer immunity? Or is it (as the Court's characterization of Alamango,
see n. 2, supra, suggests) the formal designation of the guards, or perhaps of the guards'
employer, as a "state instrumentality" that makes the difference? Since, as I say, I see no sense
in the public private distinction, neither do I see what precisely it consists of.
Today's decision says that two sets of prison guards who are indistinguishable in the ultimate
source of their authority over prisoners, indistinguishable in the powers that they possess over
prisoners, and indistinguishable in the duties that they owe towards prisoners, are to be treated
quite differently in the matter of their financial liability. The only sure effect of today's
decision--and the only purpose, as far as I can tell--is that it will artificially raise the cost of
privatizing prisons. Whether this will cause privatization to be prohibitively expensive, or
instead simply divert state funds that could have been saved or spent on additional prison
services, it is likely that taxpayers and prisoners will suffer as a consequence. Neither our
precedent, nor the historical foundations of §1983, nor the policies underlying §1983, support
this result.
I respectfully dissent.
4.3.1 Footnotes
[ Footnote 1 ] Williams held that prisoners could not recover damages for negligence against
the master of a house of correction. That official seems to have been no more a "public
officer" than the head of a private company running a prison. For example, the governing
statute provided that he was to be paid by the prisoners for his expenses in supporting and
employing them, and in event of their default he was given an action indebitatus assumpsit for
the sum due, "which shall be deemed to be his own proper debt." Mass. Gen. Stat., ch. 143,
§15 (1835). If he failed to distribute to the prisoners those "rations or articles of food, soap,
fuel, or other necessaries" directed by the county commissioner (or the mayor and aldermen
of Boston), he was subject to a fine. Id., §45. The opinionin Williams says that "[t]he master
of the house of correction is not an independent public officer, having the same relations to
those who are confined therein that a deputy sheriff has to the parties to a writ committed to
him to serve." 85 Mass., at 173.
[ Footnote 2 ] The Court cites Alamango for the proposition that there is "no cause of action
against [a] private contractor where [the] contractor [is] designated [a] state instrumentality by
statute." Ante, at 6. The opinion in Alamango, however, does not cite any statutory
designation of the supervisors as a "state instrumentality," and does not rely on such a
designation for its holding. It does identify the Board of Supervisors as "a mere
instrumentality selected by the State," 32 N. Y. Sup. Ct., at 552, but the same could be said of
the prison management firm here (or the master of the house of corrections in Williams v.
Adams, 85 Mass. 171 (1861), see n. 1, supra). If one were to accept the Court's distinguishing
of this case, all that would be needed to change the outcome in the present suit is thepointless
formality of designating the contractor a "state instrumentality"--hardly a rational resolution
of the question before us.
[ Footnote 3 ] This is true even of successfully defended lawsuits, and even of lawsuits that
have been insured against. The Court thinks it relevant to the factor I am currently discussing
that the private prison management firm "must buy insurance sufficient to compensate victims
of civil rights torts," ante, at 10. Belief in the relevance of this factor must be traceable,
ultimately, to belief in the existence of a free lunch. Obviously, as civil rights claims increase,
the cost of civil rights insurance increases.
LEGAL NEWS: Top Headlines · Supreme Court · Commentary · Crime · Cyberspace · International
US FEDERAL LAW: Constitution · Codes · Supreme Court Opinions · Circuit Opinions
US STATE LAW: State Constitutions · State Codes · Case Law
RESEARCH: Dictionary · Forms · LawCrawler · Library · Summaries of Law
LEGAL SUBJECTS: Constitutional · Intellectual Property · Criminal · Labor · more...
GOVERNMENT RESOURCES: US Federal · US State · Directories · more...
INTERNATIONAL RESOURCES: Country Guides · Trade · World Constitutions · more...
COMMUNITY: Message Boards · Newsletters · Greedy Associates Boards
TOOLS: Office · Calendar · CLE · Email · West WorkSpace · FirmSite
Advertising Info · Add URL · Help · Comments
Jobs@FindLaw · Site Map
Company | Privacy Policy | Disclaimer
Copyright © 1994-2004 FindLaw